Ameritox, LTD. v. Millenium Laboratories Clinical Supply, Inc., No. 3:2012cv02797 - Document 46 (S.D. Cal. 2013)

Court Description: Order Granting Motion to Compel and Enforce February 19, 2013 Discovery Order [ECF No. 31 ], Request for Judicial Notice [ECF No. 35 ], and Motion for Leave to File Under Seal Portions of [Ameritox's] Reply [ECF No. 38 ]; and Denying Motion t o File Documents under Seal by Delivery to the Clerk, in Support of [MLCS's] Opposition To Ameritox's Motion to Compel And Enforce [ECF No. 26 ] and Ex Parte Application for Leave To File Surreply in Opposition To Plaintiff Ameritox, Ltd&# 039;s Motion to Compel and Enforce February 19, 2013 Discovery Order [ECF No. 41 ]. Granting 31 Motion to Compel and Enforce the 2/19/2013 Order; Denying 36 Motion to File Documents Under Seal in Support of Opposition to Ameritox's Motion to Compel; Granting 38 Motion to File Documents Under Seal Portions of Ameritox's Reply; and Denying 41 Motion for Leave to File Surreply in Opposition. it is hereby ordered that Supplemental Documents are to be produced by MLCS by 11/11/2013. MLCS' Request for Judicial Notice (Doc 35 ) is Granted. Signed by Magistrate Judge Ruben B. Brooks on 10/25/2013. (leh)(jrd)

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Ameritox, LTD. v. Millenium Laboratories Clinical Supply, Inc. Doc. 46 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 AMERITOX, LTD., 11 Plaintiff, 12 13 14 v. 15 MILLENNIUM LABORATORIES CLINICAL SUPPLY, INC., 16 17 Defendant. 18 19 20 ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Civil No. 12cv2797 W (RBB) ORDER GRANTING MOTION TO COMPEL AND ENFORCE FEBRUARY 19, 2013 DISCOVERY ORDER [ECF NO. 31], REQUEST FOR JUDICIAL NOTICE [ECF NO. 35], AND MOTION FOR LEAVE TO FILE UNDER SEAL PORTIONS OF [AMERITOX'S] REPLY [ECF NO. 38]; AND DENYING MOTION TO FILE DOCUMENTS UNDER SEAL BY DELIVERY TO THE CLERK, IN SUPPORT OF [MLCS'S] OPPOSITION TO AMERITOX'S MOTION TO COMPEL AND ENFORCE [ECF NO. 26] AND EX PARTE APPLICATION FOR LEAVE TO FILE SURREPLY IN OPPOSITION TO PLAINTIFF AMERITOX, LTD'S MOTION TO COMPEL AND ENFORCE FEBRUARY 19, 2013 DISCOVERY ORDER [ECF NO. 41] 21 22 23 On July 5, 2013, Plaintiff Ameritox, Ltd. ("Ameritox") filed a 24 Motion to Compel and Enforce February 19, 2013 Discovery Order 25 along with a declaration by Adam L. Marchuk and several exhibits 26 [ECF No. 31]. 27 February 19, 2013 Order (the "Discovery Order") directing 28 Millennium Laboratories Clinical Supply, Inc. ("MLCS") to provide There, Plaintiff asks the Court to enforce its 1 12cv2797 W (RBB) Dockets.Justia.com 1 documents in response to two subpoenas served in early 2012. (Mot. 2 Compel & Enforce Disc. Order Attach. #1 Mem. P. & A. 4, ECF No. 31 3 (public version); Mot. Compel & Enforce Disc. Order Mem. P. & A. 4, 4 ECF No. 33 (sealed version).)1 5 Plaintiff Ameritox, Ltd.'s Motion to Compel and Enforce February 6 19, 2013 Discovery Order (the "Opposition") on August 5, 2013 [ECF 7 No. 34], along with a declaration by Joseph M. Preis and several 8 exhibits. 9 versions of its Reply in Support of its Motion (the "Reply") [ECF MLCS filed its Opposition to On August 12, 2013, Ameritox filed sealed and public 10 Nos. 39, 40]. 11 to Compel and Enforce February 19, 2013 Discovery Order [ECF No. 12 31] is GRANTED. 13 14 For the reasons discussed below, Plaintiff's Motion I. FACTUAL BACKGROUND Ameritox and Millennium Laboratories, Inc. ("Millennium") are 15 competitors in the urine-drug-testing market. (Mot. Compel Attach. 16 #1 Mem. P. & A. 4, ECF No. 1.) 17 United States District Court for the Middle District of Florida for 18 violations of the Lanham Act, Florida's Deceptive and Unfair Trade 19 Practices Act, California's Unfair Competition Law, New Hampshire's 20 Regulation of Business Practices for Consumer Protection Act, and 21 for common-law unfair competition (the "Underlying Action"). 22 at 5 (citing id. Attach. #2 Ex. C).) 23 part, on the assertion that Millennium "provided Point of Care 24 Testing ('POCT') cups and supplies, used by physicians to conduct 25 urine drug testing, for free or for below-market prices upon the 26 condition that that [sic] those physicians send all confirmatory Plaintiff sued Millennium in the (Id. Ameritox's suit is based, in 27 28 1 The Court will cite to all documents using the page numbers assigned by the electronic case filing system. 2 12cv2797 W (RBB) 1 drug tests to Millennium." 2 Millennium initially provided the cups to its customers. 3 According to Ameritox, MLCS was later created to distribute the 4 cups on Millennium's behalf. 5 controlled by Millennium. 6 II. 7 (Id.) Plaintiff alleges that (Id.) (Id.) MLCS, Plaintiff contends, is (Id.) PROCEDURAL BACKGROUND On February 27 and April 6, 2012, Ameritox subpoenaed MLCS to 8 produce documents in connection with the Underlying Action. 9 Compel & Enforce Disc. Order Attach. #1 Mem. P. & A. 4, ECF No. (Mot. 10 31.) 11 (Id. at 6.) 12 insufficient and subsequently filed a "Motion to Compel Millenium 13 [sic] Laboratories Clinical Supply, Inc.'s Production of Documents" 14 with a Memorandum of Points and Authorities and several exhibits 15 (the "Motion to Compel") on November 20, 2012 [ECF No. 1]. 16 Ameritox moved to compel responses to document requests one through 17 eight and supplemental document requests one through four. 18 Compel Attach. #1 Mem. P. & A. 16-24, ECF No. 1.) 19 hearing on February 19, 2013; it granted the Motion to Compel and 20 ordered MLCS to provide documents responsive to all of the requests 21 on or before March 21, 2013. 22 Tr. Proceedings 50, ECF No. 22.) 23 ruling of its findings. 24 MLCS responded by providing objections and some documents. Plaintiff concluded that MLCS's production was There, (Mot. The Court held a (See Mot. Compel Produc. Docs. Rep.'s The Court later issued a written (See Mins., Feb. 19, 2013, ECF No. 16.) In response to the Discovery Order, MLCS provided additional 25 documents to Plaintiff on March 21, June 14, and June 21, 2013. 26 (Mot. Compel & Enforce Disc. Order Attach. #1 Mem. P. & A. 5, ECF 27 No. 31.) 28 filed a Motion for Leave to File Under Seal Documents in Support of Ameritox again found MLCS's production deficient; it 3 12cv2797 W (RBB) 1 Motion to Compel Pursuant to Protective Order on July 3, 2013 [ECF 2 No. 26]. 3 Enforce Discovery Order 4 Ameritox leave to file documents under seal on July 9, 2013 [ECF 5 No. 32]. 6 Authorities in Support of its Motion to Compel and Enforce February 7 19, 2013 Discovery Order was filed under seal along with several 8 exhibits [ECF No. 33]. 9 On July 5, 2013, Plaintiff filed its Motion to Compel and [ECF No. 31]. The Court granted Plaintiff On the same day, Ameritox's Memorandum of Points and MLCS filed the Opposition on August 5, 2013 [ECF No. 34], 10 along with a Request for Judicial Notice in Support of its 11 Opposition to Ameritox's Motion to Compel and Enforce [ECF No. 35] 12 (the "Request for Judicial Notice") and a Motion to File Documents 13 Under Seal by Delivery to the Clerk, in Support of its Opposition 14 to Ameritox's Motion to Compel and Enforce [ECF No. 36]. 15 determined that the Motion to Compel and Enforce was suitable for 16 decision without oral argument. 17 On August 12, 2013, Plaintiff filed a Motion for Leave to File 18 Under Seal Portions of Its Reply [ECF No. 38], along with sealed 19 and public versions of the Reply [ECF Nos. 39, 40]. 20 The Court (Mins., Aug. 6, 2013, ECF No. 37.) MLCS, on August 16, 2013, filed an Ex Parte Application for 21 Leave to File Surreply in Opposition to Plaintiff Ameritox, Ltd.'s 22 Motion to Compel and Enforce February 19, 2013 Discovery Order, 23 along with a copy of the proposed surreply [ECF No. 41]. 24 20, 2013, Ameritox filed an Opposition to Third Party Millennium 25 Laboratories Clinical Supply, Inc.'s Ex Parte Application for Leave 26 to File Surreply in Opposition to Plaintiff Ameritox, Ltd.'s Motion 27 to Compel and Enforce February 19, 2013 Discovery Order [ECF No. On August 28 4 12cv2797 W (RBB) 1 42]. MLCS filed a Response in Support of its Ex Parte Application 2 on August 21, 2013 [ECF No. 44]. 3 4 III. A. DISCUSSION Preliminary Matters 5 1. Motions to file documents under seal 6 As noted, MLCS filed a Motion to File Documents Under Seal by 7 Delivery to the Clerk, in Support of its Opposition to Ameritox's 8 Motion to Compel and Enforce [ECF No. 36], where it requests to 9 file documents under seal in support of the Opposition. (Mot. File 10 Docs. Under Seal 2, ECF No. 36.) 11 the Court with "[t]he entirety of MLCS's production of documents" 12 on a computer disk rather than via the electronic case filing 13 system. 14 filing procedures because of "the exceptional size of the document 15 files." 16 necessary to resolve the Motion to Compel and Enforce February 19, 17 2013 Discovery Order. 18 Under Seal by Delivery to the Clerk [ECF No. 36] is DENIED. 19 (Id.) (Id.) Specifically, it seeks to provide MLCS asks to deviate from the standard electronic- The Court finds that additional documents are not Accordingly, MLCS's Motion to File Documents Plaintiff also filed a Motion for Leave to File Under Seal 20 Portions of Its Reply [ECF No. 38]. There, Ameritox requests to 21 file its Reply under seal because it contains arguments that 22 reference documents that have been designated as "Highly 23 Confidential/Attorneys Eyes Only." 24 ECF No. 38.) 25 Reply have been heavily redacted, a complete version of the Reply 26 is necessary for resolving the matters at issue in the Motion to 27 Compel and Enforce February 19, 2013 Discovery Order. (Mot. Leave File Under Seal 2, Because the arguments in the public version of the Ameritox's 28 5 12cv2797 W (RBB) 1 Motion for Leave to File Under Seal Portions of Its Reply [ECF No. 2 38] is therefore GRANTED. 3 2. Ex Parte Application for Leave to File Surreply in 4 Opposition to Plaintiff Ameritox, Ltd.'s Motion 5 On August 16, 2013, MLCS filed an Ex Parte Application for 6 Leave to File Surreply in Opposition to Plaintiff Ameritox, Ltd.'s 7 Motion to Compel and Enforce February 19, 2013 Discovery Order, 8 along with a copy of the proposed surreply [ECF No. 41]. 9 to file a surreply in order to "rebut the misrepresentations made It seeks 10 by Ameritox" in the Reply. (Ex Parte Appl. Leave File Surreply 2, 11 ECF No. 41.) 12 held to allow the parties to present oral argument. 13 Court finds that all issues have been adequately briefed in the 14 Motion to Compel and Enforce February 19, 2013 Discovery Order, 15 Opposition, and Reply. 16 Surreply [ECF No. 41] is therefore DENIED. In the alternative, MLCS requests that a hearing be (Id.) The The Ex Parte Application for Leave to File 17 3. Request for Judicial Notice 18 In support of its Opposition, MLCS filed a Request for 19 Judicial Notice asking the Court to judicially notice the following 20 documents: 21 Ameritox's Motion to Compel; (2) a Joint Motion for Determination 22 of Discovery Dispute Regarding Defendant's Failure to Produce 23 Responsive Documents and Failure to Produce Witnesses, filed in 24 Millennium Laboratories, Inc. v. Ameritox Ltd., No. 12cv1063 MMA 25 (JMA) (S.D Cal. filed June 11, 2013); (3) two orders from the 26 Underlying Action in Florida; and (4) three orders filed in Nelson 27 v. Millennium Inc., No. 2:12-cv-1301-SLG (D. Ariz.). (1) a transcript of the February 19, 2013 hearing on (Req. 28 6 12cv2797 W (RBB) 1 Judicial Notice 2-3, ECF No. 35.) 2 the authenticity of these documents nor opposed MLCS's request. 3 Plaintiff has neither questioned A fact subject to judicial notice is one that is "not subject 4 to reasonable dispute because it: (1) is generally known within 5 the trial court's territorial jurisdiction or; (2) can be 6 accurately and readily determined from sources whose accuracy 7 cannot reasonably be questioned." 8 shall take judicial notice if requested by a party and supplied 9 with the necessary information. Fed. R. Evid. 201(b). Id. 201(c)(2). A court The Court may take 10 judicial notice of undisputed matters of public record, including 11 "documents on file in federal or state courts." 12 Orange, 682 F.3d 1126, 1132 (9th Cir. 2012). Harris v. Cnty. of "[A] party requesting judicial notice bears the burden of 13 14 persuading the trial judge that the fact is a proper matter for 15 judicial notice." 16 (Bankr. E.D. Cal. 1992) (citations omitted). 17 "persuade the court that the particular fact is not reasonably 18 subject to dispute and is capable of immediate and accurate 19 determination by resort to a source 'whose accuracy cannot 20 reasonably be questioned' . . . ." 21 201). 22 unreasonable person would insist on disputing." 23 Jones, 29 F.3d 1549, 1553 (11th Cir. 1994). 24 In re Tyrone F. Conner Corp., 140 B.R. 771, 781 That party must Id. (quoting Fed. R. Evid. In other words, "the fact must be one that only an United States v. When documents are part of the public record, judicial notice 25 is appropriate to show that judicial proceedings occurred or that 26 documents were filed in another action, but courts must not take 27 judicial notice of factual findings from another case. 28 v. Terhune, 315 F.3d 1108, 1114 (9th Cir. 2003); Lee v. City of Los 7 See Wyatt 12cv2797 W (RBB) 1 Angeles, 250 F.3d 668, 689-90 (9th Cir. 2001); Jones, 29 F.3d at 2 1553. 3 dispute. 4 1160, 1165 (10th Cir. 2001). 5 Courts cannot take judicial notice of any fact that is in Lee, 250 F.3d at 689; see Lozano v. Ashcroft, 258 F.3d Exhibit A is the transcript from the February 19, 2013 hearing 6 on the Motion to Compel. (See Req. Judicial Notice Attach. #1 Ex. 7 A Mot. Compel Produc. Docs. Rep.'s Tr. Proceedings 2, ECF No. 35.) 8 This document is part of the docket in this matter; thus, a request 9 for judicial notice is not necessary. (See generally Mot. Compel 10 Produc. Docs. Rep.'s Tr. Proceedings 1-51, ECF No. 22); see Negrete 11 v. Petsmart, Inc., No. 2:13–cv–01218–MCE–AC, 2013 WL 4853995, at *1 12 n.2 (E.D. Cal. Sept. 10, 2013); Sarantapoulas v. Bank of America, 13 N.A., No. C 12–0564 PJH, 2012 WL 4761900, at *6 (N.D. Cal. Oct. 5, 14 2012). 15 records. 16 Nonetheless, the Court may take judicial notice of court See Harris, 682 F.3d at 1132. Exhibits B-H are court records from other cases, for which 17 judicial notice is permissible. 18 documents are not authentic. 19 document is commonly known and readily verifiable by independent 20 and dependable methods. 21 at 781; Fed. R. Evid. 201(b). 22 Judicial Notice [ECF No. 35] is GRANTED. 23 B. 24 Nothing suggests that these Moreover, the content of each See In re Tyrone F. Conner Corp., 140 B.R. Accordingly, the Request for The Parties' Arguments Ameritox lists nine reasons why MLCS's production of documents 25 is not in compliance with the Discovery Order. 26 Enforce Disc. Order Attach. #1 Mem. P. & A. 6-8, ECF No. 31.) 27 ground one, Plaintiff maintains that MLCS failed to provide 28 documents in electronic form. (Id. at 8.) 8 (See Mot. Compel & In Next, it failed to 12cv2797 W (RBB) 1 provide documents containing customer names. 2 Ameritox complains that MLCS did not provide sales and payment 3 information for each customer. 4 ground four, that MLCS did not provide documents regarding free cup 5 contracts. 6 third-party, MLCS, failed to produce screen shots of its website. 7 (Id. at 14.) 8 cashed checks, uncashed checks, and credit card chargebacks. 9 at 15.) (Id. at 13.) (Id. at 12.) (Id. at 10.) Third, Plaintiff asserts, in In ground five, Ameritox insists that Sixth, MLCS did not produce documents pertaining to (Id. As a seventh reason, Ameritox states that MLCS failed to 10 provide information related to invoices that have been unpaid for 11 more than sixty days. 12 MLCS did not provide documents showing payments and fund transfers 13 between MLCS and Millennium. 14 that MLCS failed to provide verified responses. 15 Plaintiff concludes by requesting that sanctions be imposed against 16 the third party for its noncompliance with the Court's Discovery 17 Order. (Id. at 16.) (Id.) Eighth, Plaintiff submits that Finally, Ameritox contends (Id. at 17.) (Id. at 18.) 18 1. 19 First, Ameritox alleges that the subpoenas required MLCS to Failure to produce documents in proper form 20 provide electronically stored information ("ESI") in a specified, 21 electronic format. 22 at 12, 16, ECF No. 1; id. Attach. #4 Ex. B at 12, 16).) 23 according to Plaintiff, MLCS provided hard-copy printouts of the 24 requested documents. 25 are kept in electronic form in the ordinary course of business, but 26 MLCS chose to produce the documents in the "most time consuming and 27 impractical manner imaginable." 28 documents are "difficult to use and unsearchable." (Id. at 8 (citing Mot. Compel Attach. #3 Ex. A (Id.) Yet, Ameritox contends that the documents (Id.) 9 Plaintiff argues that the (Id. at 9.) 12cv2797 W (RBB) 1 Moreover, Ameritox asserts that even if it "did not specify the 2 [requested] format, it is well-settled that a responding party must 3 produce ESI in a 'reasonably useable' form." 4 Civ. P. 34(b)(2)(E)(ii)).) 5 the subpoenaed party to comply with the Discovery Order and produce 6 all remaining documents in electronic format. 7 (Id. (citing Fed. R. Thus, Plaintiff asks the Court to order (Id. at 9-10.) In its Opposition, MLCS submits that "[e]very document in 8 MLCS's production that Ameritox requested in searchable electronic 9 format has been produced." (Opp'n 11, ECF No. 34.) Plaintiff 10 maintains in the Reply that "[w]hile MLCS has provided this Court 11 with a CD containing its entire document production, MLCS never 12 provided Ameritox with a CD containing the entire document 13 production until after MLCS provided it to the Court." 14 ECF No. 40.)2 15 produced are still inadequate "because the CD does not include any 16 documents in a 'reasonably usable' form, such as the native format, 17 for any documents, including Excel spreadsheets." 18 (footnote omitted).) 19 MLCS, must provide the documents in "native format" in order "to 20 prevent an undue burden to Ameritox in comprehending and 21 calculating information contained therein." (Reply 4, Plaintiff insists that the electronic documents (Id. at 4-5 Ameritox urges that the subpoenaed party, (Id. at 5.) 22 The Federal Rules of Civil Procedure provide that "[i]f a 23 request does not specify a form for producing electronically stored 24 information, a party must produce it in a form or forms in which it 25 is ordinarily maintained or in a reasonably usable form or forms." 26 2 27 28 The Court notes that because MLCS's Motion to File Documents Under Seal by Delivery to the Clerk, in Support of its Opposition to Ameritox's Motion to Compel and Enforce [ECF No. 36] was denied, the disk the parties refer to was not provided to the Court. 10 12cv2797 W (RBB) 1 Fed. R. Civ. P. 34(b)(2)(E)(ii). The original and supplemental 2 subpoeneas specify the format for producing ESI. 3 "All electronic documents or electronically-stored information 4 ("ESI") should be produced in single page, group IV .tiff file 5 format, accompanied by OCR text at the document level." 6 Compel. Attach. #3 Ex. A at 16, ECF No. 1; id. Attach. #4 Ex. B at 7 16.) 8 are searchable or reasonably usable, neither side addresses whether 9 they are in the precise format called for by the subpoenas. They both state, (Mot. While the parties dispute whether the electronic documents Absent 10 an agreement between the parties, MLCS is ordered to provide all 11 documents in the format described in the subpoenas. 12 Compel and Enforce [ECF No. 31] on this basis is GRANTED. The Motion to 13 2. Failure to produce documents with customer names 14 Plaintiff contends that when MLCS responded to document 15 request two, it removed all customer names from the documents and 16 replaced them with numeric identifiers. 17 Disc. Order Attach. #1 Mem. P. & A. 10-11, ECF No. 31.)3 18 argues that the Court has already determined that customer names 19 are relevant, so they must be provided for MLCS to properly respond 20 to this document request. 21 Attach. #1 Mem. P. & A. 11, ECF No. 31.) (Mot. Compel & Enforce Ameritox (Mot. Compel & Enforce Disc. Order 22 3 23 24 25 26 27 28 Document request two reads as follows: Documents sufficient to identify, for each customer or account for whom MLCS has provided, arranged, facilitated, or been involved in any manner with providing or arranging POCT Cups (including reagents), the amount charged for each POCT Cup, the amount the customer or account actually paid for the POCT Cups, the terms under which the customer or account received the POCT Cups, and any written agreement under which the customer or account received the POCT Cups. (Mot. Compel. Attach. #3 Ex. A 18-19, ECF No. 1.) 11 12cv2797 W (RBB) 1 In its Opposition, MLCS maintains that it has "produced a 2 spreadsheet containing all customer names, addresses, and phone 3 numbers -- precisely what the Subpoenas required." 4 No. 34.) 5 request two is "strained" because the request does not require MLCS 6 to link customer names to specific transactions. 7 Customer names, according to MLCS, are "confidential and highly 8 sensitive." 9 rejected – at the initial motion hearing on February 19, 2013. (Opp'n 12, ECF It urges that Plaintiff's interpretation of document (Id. at 13.) (Id. at 12-13.) MLCS restates arguments made – and 10 (Mot. Compel & Enforce Disc. Order Attach. #3 Ex. A Mot. Compel 11 Produc. Docs Rep.'s Tr. at 14, ECF No. 31.) 12 competitive information was to be produced by MLCS under the terms 13 of the protective order in place. 14 asserts that Ameritox has all the information it needs to determine 15 whether, as a general matter, MLCS provided POCT cups at a low 16 cost. 17 (Id.) This Court ruled that Nevertheless, MLCS (Id. at 15.) Plaintiff alleges in the Reply that MLCS changed the documents 18 from the form they are kept in the ordinary course of business by 19 omitting customer names. 20 other arguments in the sealed version of its Reply, which the Court 21 has read and considered. 22 version).) 23 (Reply 6, ECF No. 40.) Ameritox provides (See Reply 6-8, ECF No. 39 (sealed Rule 34 of the Federal Rules of Civil Procedure states, "A 24 party must produce documents as they are kept in the usual course 25 of business or must organize and label them to correspond to the 26 categories in the request." 27 MLCS admits that it altered the documents from how they are kept in 28 the usual course by replacing customer names with numeric Fed. R. Civ. P. 34(b)(2)(E)(I). 12 Here, 12cv2797 W (RBB) 1 identifiers. 2 identification numbers for each account . . . were added . . . .")) 3 The third party's production is improper, and the Motion to Compel 4 and Enforce [ECF No. 31] as to document request two is therefore 5 GRANTED. 6 Order and provide Plaintiff with responsive documents that contain 7 customer names, not numeric identifiers. 8 3. 9 (See Opp'n 14, ECF No. 34 ("[U]nique customer MLCS is ordered to comply with the Court's Discovery Failure to produce sales and payment information for each customer 10 Next, Ameritox maintains that MLCS responded to document 11 request two by providing transaction histories organized by month 12 and year, rather than by customer. 13 Order Attach. #1 Mem. P. & A. 12, ECF No. 31.) 14 Ameritox to dig through tens of thousands of spreadsheet entries to 15 piece together customer sales and payment histories bit-by-bit." 16 (Id.) 17 by customer, and should be ordered to produce those documents. 18 (Id. at 12-13.) (Mot. Compel & Enforce Disc. "MLCS thus expects Plaintiff asserts that MLCS organizes transaction histories 19 In the Opposition, MLCS insists that it has provided Ameritox 20 with all the requested information sorted by a customer-identifier 21 number. 22 it is under no obligation to provide actual customer names because 23 the document request does not ask for them. 24 Supplying customer names, the third party argues, "would give 25 Ameritox the single most important piece of competitive trade 26 secret information possessed by MLCS." 27 Plaintiff states that "[n]o valid reason exists for MLCS's attempt 28 to unduly burden Ameritox with voluminous spreadsheets of raw data (Opp'n 16-17, ECF No. 34.) 13 Moreover, MLCS contends that (Id. at 17.) (Id.) In the Reply, 12cv2797 W (RBB) 1 when MLCS has reports created in the ordinary course of business 2 that compile the information by customer." 3 40.) 4 (Reply 8-9, ECF No. MLCS is ordered to produce responsive documents identifying 5 each customer by name, not with a numerical identifier. 6 current production is inadequate and the Motion to Compel and 7 Enforce Discovery Order [ECF No. 31] as to document request two is 8 GRANTED on this additional basis. 9 10 4. MLCS's Failure to produce documents regarding free cup contracts Next, Plaintiff alleges that the third party has failed to 11 provide Ameritox with documents relating to "(1) the terms under 12 which customers received cups; and (2) written agreements between 13 MLCS and its customers." 14 Attach. #1 Mem. P. & A. 13, ECF No. 31.) 15 Plaintiff is again referring to document request two. 16 Compel Attach. #3 Ex. A at 18-19, ECF No. 1.) 17 Plaintiff, in response to this request, "MLCS failed to produce a 18 single Cup Contract to Ameritox." 19 Order Attach. #1 Mem. P. & A. 13, ECF No. 31.) 20 argues that "MLCS possesses documents that easily identify all 21 customers with Cup Contracts, and the terms of those Cup Contracts, 22 but refused to produce them." 23 (Mot. Compel & Enforce Disc. Order The Court infers that (See Mot. According to (Mot. Compel & Enforce Disc. Moreover, Plaintiff (Id. (footnote omitted).) Ameritox also urges that as to document request three, MLCS is 24 obligated to produce invoices for cup contracts or "'documents 25 sufficient to identify the information concerning those invoices.'" 26 (Id. at 14 (quoting Mot. Compel Attach. #3 Ex. A at 19, ECF No. 27 28 14 12cv2797 W (RBB) 1 1).)4 2 invoices. 3 documents showing this information, Ameritox asserts that only one 4 document partially capturing this information was produced and is 5 insufficient. 6 Mem. P. & A. 14, ECF No. 33 (sealed version) (citing id. Attach. 7 #16 Ex. O (referring to one customer for eight months of one 8 year)).) 9 Plaintiff maintains that MLCS has only provided a few (Id.) To the extent MLCS has spreadsheets and other (Id.; see also Mot. Compel & Enforce Disc. Order MLCS counters by insisting that Plaintiff's request is 10 improper because the contracts sought are between Millennium and 11 its customers, and MLCS thus "does not maintain them." 12 ECF No. 34.) 13 magistrate judge in the Underlying Action to seek these documents 14 directly from Millennium. 15 Notice Attach. #3 Ex. C at 2, ECF No. 35).)5 16 that summary reports have been produced that contain all relevant 17 information, including "customer identifier[s], date[s], type[s] 18 and quantit[ies] of cups provided, among other things[]." 19 18, ECF No. 34.) (Opp'n 17, According to MLCS, Ameritox was ordered by the (Id. at 17-18 (citing Req. Judicial MLCS also maintains (Opp'n 20 21 4 22 23 24 25 26 27 28 Document request three asks for "[a]ll price lists, invoices and/or purchase orders related to the sale and/or provision of POCT cups and/or POCT supplies (including reagents), or documents sufficient to identify the information concerning those invoices and/or purchase order, including but not limited to spreadsheets and other business records." (Mot. Compel. Attach. #3 Ex. A 19, ECF No. 1.) 5 This misrepresents the context of Judge McCoun's order. The order addressed documents and other items "allegedly improperly retained by [two] witnesses . . . ." (See Req. Judicial Notice Attach. #3 Ex. C, at 2, ECF No. 35.) "Plaintiff [Ameritox] will have to obtain such matters from Defendant or by some other means." (Id.) 15 12cv2797 W (RBB) 1 In the Reply, Plaintiff argues that this Court has already 2 ordered MLCS to provide this information and should not entertain 3 MLCS's belated arguments. 4 that the spreadsheet provided by MLCS is insufficient because it 5 omits customer names and does not indicate which customers received 6 free cups. 7 customers in the spreadsheets, Plaintiff contends, MLCS must 8 provide the actual customer invoices. 9 (Id. at 10.) (Reply 9, ECF No. 39.) Ameritox insists If MLCS does not provide the names of its (Id.) "Legal ownership of the requested documents, electronically 10 stored information, or things is not determinative, nor is actual 11 possession necessary if the party has control of the items. 12 Control has been defined to include 'the legal right to obtain the 13 documents requested upon demand.' 14 construed." 15 34.14[2][b], at 34-73 to 34-74 (3rd ed. 2013) (footnotes omitted) 16 (discussing requests for production under Rule 34). 17 or control of documents or other materials can involve 18 consideration of a wide array of factors . . . ." 19 The term 'control' is broadly 7 James Wm. Moore et al., Moore's Federal Practice § "[P]ossession Id. at 34-76. Regardless of whether MLCS has custody, possession, or 20 control of the cup contracts or invoices, to the extent it has 21 other documents containing the information requested, MLCS must 22 provide them. 23 by name, not with a numeric identifier. 24 failed to properly comply with the Discovery Order by withholding 25 customer names. 26 [ECF No. 31] as to document requests two and three is therefore 27 GRANTED. MLCS is to provide documents that identify customers To date, Ameritox has The Motion to Compel and Enforce Discovery Order 28 16 12cv2797 W (RBB) 1 5. Failure to produce screen shots of website 2 Next, Plaintiff asserts that the third party "failed to 3 produce relevant screen shots of the sales, marketing, pricing, and 4 promotional materials that have appeared on its website from 2009 5 to the present." 6 Mem. P. & A. 14, ECF No. 31.) 7 request four.6 8 legible copies of the screen shots, MLCS has only produced "three 9 black and white copies of a single webpage, which are undated and (Mot. Compel & Enforce Disc. Order Attach. #1 This request relates to document Ameritox states that despite its requests for 10 illegible." 11 by asserting that "[it] has produced the information that it 12 possesses -- including screen shots from its website." 13 ECF No. 34 (citation omitted).) 14 (Id. (citing id. Attach. #17 Ex. P).) MLCS responds (Opp'n 18, The screen shots provided by MLCS are unintelligible and 15 undated. (Mot. Compel & Enforce Disc. Order Attach. #17 Ex. P. at 16 2-4, ECF No. 33 (sealed version).) 17 hearing on the Motion to Compel that MLCS was responsible for 18 providing screen shots of previous versions of the website. 19 Mot. Compel Produc. Docs. Rep.'s Tr. Proceedings 18-19, ECF No. 20 22.) 21 legible, dated screen shots from May 2009 to the present. 22 at 11 (holding that the relevant time period for the subpoenas was 23 May 2009 to the present).) 24 production is, again, not in compliance the Discovery Order. The Court made clear at the (See To fully comply with the Discovery Order MLCS must provide It has not done so. (See id. The document The 25 6 26 27 28 The full text of document request four asks for "[a]ll sales, marketing, pricing and/or promotional materials related to POCT Cups and/or POCT supplies (including reagents) and/or documents that mention or discuss the sale, marketing, promotion, pricing and/or provision of POCT Cups and/or POCT supples (including reagents)." (Mot. Compel. Attach. #3 Ex. A 18-19, ECF No. 1.) 17 12cv2797 W (RBB) 1 Motion to Compel and Enforce February 19, 2013 Discovery Order [ECF 2 No. 31] as to document request four is GRANTED. 3 6. 4 Failure to produce documents related to cashed and uncashed checks and credit card chargebacks 5 Plaintiff argues that as to document request six, MLCS refuses 6 to provide "documents reflecting all cashed and un-cashed checks, 7 and credit card chargebacks for POCT cups and supplies." 8 Compel & Enforce Disc. Order Attach. #1 Mem. P. & A. 15, ECF No. 9 31.) (Mot. Ameritox insists that the documents provided by MLCS "lack 10 enough detail for Ameritox to understand the purpose and actual 11 terms of any transaction[.]" 12 (Id.) MLCS urges that this document request does not ask for "actual 13 cashed or uncashed checks or chargebacks." 14 (emphasis omitted).) 15 "information sufficient to identify those transactions." 16 this basis, MLCS contends that responsive documents have been 17 produced in electronic, searchable form. 18 arguments in the sealed version of the Reply, which the Court has 19 read and considered. 20 (Opp'n 19, ECF No. 34 Rather, MLCS claims it may produce (Id.) (Id.) On Plaintiff asserts (See Reply 11-12, ECF No. 39.) In Exhibit Q of the Motion to Compel and Enforce February 19, 21 2013 Discovery Order, Plaintiff includes documents provided by MLCS 22 in response to this request. 23 Order Attach. #18 Ex. Q, ECF No. 33 (sealed version).) 24 not dispute that Exhibit Q contains the documents it provided to 25 Ameritox. 26 fragmented information MLCS produced confirms Ameritox's claim that 27 the documents provided are insufficient to identify the 28 transactions. (See Mot. Compel & Enforce Disc. (See Opp'n 19-20, ECF No. 34.) MLCS does The twenty-six pages of MLCS is to comply with the Discovery Order and 18 12cv2797 W (RBB) 1 produce documents containing the requested information. 2 to Compel and Enforce Discovery Order [ECF No. 31] as to document 3 request six is GRANTED. 4 7. 5 The Motion Failure to provide invoices that have been unpaid for sixty days or longer 6 Ameritox argues that MLCS failed to properly respond to 7 document request eight because it did not "produce copies of all 8 invoices for POCT cups and supplies that have been unpaid for sixty 9 (60) days or longer." (Mot. Compel & Enforce Disc. Order Attach. 10 #1 Mem. P. & A. 16, ECF No. 31.) 11 provided a few open invoices for 2009 and 2010. 12 Plaintiff states that MLCS only (Id.) MLCS maintains that it may produce summaries of the requested 13 information, as producing all the invoices would be "a laborious 14 and time-consuming task." 15 it contends that Plaintiff should seek this information from 16 Millennium in the Underlying Action. 17 asserts a number of arguments under seal, which the Court has 18 considered. 19 (Opp'n 20, ECF No. 34.) (Id.) Additionally, In its Reply, Ameritox (See Reply 12, ECF No. 39.) The plain language of document request eight calls for the 20 production of "all invoices." 21 19, ECF No. 1.) 22 balances is disparate from the number of invoices produced to 23 Ameritox. 24 No. 33 (sealed version).) 25 provide them. 26 spreadsheets or other reports to manage invoice information, those 27 unredacted documents may be sufficiently responsive if they contain 28 all the information contained in the invoices. (Mot. Compel. Attach. #3 Ex. A at Yet, the number of MLCS customers with open (Mot. Compel & Enforce Disc. Order Mem. P. & A. 16, ECF To the extent MLCS has invoices, it must If, in the ordinary course of business, it uses 19 In either case, the 12cv2797 W (RBB) 1 Motion to Compel and Enforce February 19, 2013 Discovery Order [ECF 2 No. 31] as to document request eight is GRANTED. 3 8. 4 Failure to provide documents reflecting payments and fund transfers 5 Ameritox contends that to properly respond to supplemental 6 document request four, MLCS must produce all documents showing any 7 payments or transfers of funds between MLCS and Millennium. 8 Compel & Enforce Disc. Order Attach. #1 Mem. P. & A. 17, ECF No. 31 9 (citing Mins., Feb. 19, 2013, ECF No. 16; Mot Compel Attach. #4 Ex. (Mot. 10 B at 19, ECF No. 1).) 11 Compel and Enforce Discovery Order, Plaintiff provides additional 12 arguments and cites to a document produced by MLCS that contains 13 fragments of information called for by Ameritox's subpoena. 14 id.) 15 that additional documents likely exist relating to these 16 transactions. 17 P. & A. 17, ECF No. 31.) 18 should be ordered to produce those documents. 19 In the sealed version of the Motion to (See Based on MLCS's limited production to date, Ameritox argues (Mot. Compel & Enforce Disc. Order Attach. #1 Mem. Plaintiff insists that the third party (Id.) MLCS claims that it has complied with the subpoena by 20 producing responsive documents showing the "dates of payments, 21 transaction types[,] and amounts." 22 Additionally, MLCS contends that Ameritox's request is improper 23 because Plaintiff was ordered to seek from Millenium the documents 24 that can be obtained directly from it in the Underlying Action. 25 (Id. at 21.) 26 duplicative of those already provided. 27 a new objection to the production of documents subpoenaed by (Opp'n 20-21, ECF No. 34.) Thus, any documents produced in this action would be (Id.) If MLCS is asserting 28 20 12cv2797 W (RBB) 1 Ameritox and ordered produced by this Court, the objection comes 2 too late and is not well founded. 3 Supplemental document request four asks for "All documents 4 reflecting any payments or transfer of funds of any nature between 5 MLCS and Millennium Laboratories, Inc." 6 Ex. B at 19, ECF No. 1 (emphasis added).) 7 do not fully comply with the Discovery Order. 8 document reproduced on page seventeen of the sealed version of the 9 Motion to Compel and Enforce Discovery Order, it appears that MLCS (Mot. Compel. Attach. #4 The documents provided First, based on the 10 eliminated data fields from the document. (See Mot. Compel & 11 Enforce Disc. Order Mem. P. & A. 17, ECF No. 33 (sealed version).) 12 Second, MLCS does not argue that it has produced "all documents" 13 reflecting the requested information. 14 that it has "produced documents reflecting this information." 15 (Opp'n 20, ECF No. 34.) 16 insufficient to comply with the Court's Discovery Order. 17 reasons, MLCS is ordered to comply with the Discovery Order and 18 provide all responsive documents to Plaintiff. 19 Compel and Enforce February 19, 2013 Discovery Order [ECF No. 31] 20 as to supplemental document request four is GRANTED. Rather, MLCS merely contends The morsels of information produced are For these The Motion to 21 9. 22 Ameritox maintains that the Court ordered MLCS to provide Failure to produce verified responses 23 verified discovery responses for all document requests where 24 "responsive documents do not exist or have been produced." 25 Compel & Enforce Disc. Order Attach. #1 Mem. P. & A. 17-18, ECF No. 26 31 (citing Mins., Feb. 19, 2013, ECF No. 16).) 27 claims that it has produced all documents responsive to some of 28 Plaintiff's requests, MLCS has failed to provide a verified 21 (Mot. Yet, while MLCS 12cv2797 W (RBB) 1 statement from a company officer to this effect. (Id. at 18.) In 2 its Opposition, MLCS submits that the Court did not require it to 3 provide verified responses for all document requests, merely to 4 those where additional documents would not be forthcoming after the 5 hearing on the Motion to Compel. 6 Mins. 1, Feb. 19, 2013, ECF No. 16).) (Opp'n 21-22, ECF No. 34 (citing 7 At the February 19, 2013 hearing on Ameritox's Motion to 8 Compel the Court held, "'When a party claims that all the requested 9 documents have already produced, it must state that fact under oath That guidance is useful here. 10 in response to the request.' 11 Although Millennium Laboratories Clinical Supply urges that many 12 documents have already been produced, that response should be made 13 under oath." (Mot. Compel Produc. Docs. Rep.'s Tr. Proceedings 18, 14 ECF No. 22.) If MLCS has produced all responsive documents, it 15 must make that statement under oath. 16 claims that more documents will not be forthcoming as to any 17 document request because all responsive documents have been 18 provided or do not exist, it is to state so under oath. 19 Accordingly, the Motion to Compel and Enforce February 19, 2013 20 Discovery Order [ECF No. 31] is also GRANTED. To the extent the third party 21 10. 22 Plaintiff asks the Court to award sanctions "as the Court Sanctions 23 deems appropriate, in light of MLCS's conduct since the Discovery 24 Order was entered more than four months ago." 25 Enforce Disc. Order Attach. #1 Mem. P. & A. 18, ECF No. 31.) 26 Ameritox does not support this request with case law or an 27 application of the facts to the standards for imposing sanctions. 28 It is unclear whether Plaintiff seeks monetary, or some other type 22 (Mot. to Compel & Yet, 12cv2797 W (RBB) 1 of sanction. 2 sanctions, the Court declines to rule on the issue. 3 Based on Ameritox's one-sentence request for A company's culture of compliance with court orders is set at 4 the top of the organization. 5 subpoenas and court orders is suspect. 6 buttressed by the fact that at the time Ameritox moved to compel 7 compliance with its subpoenas, the chief executive officer of MLCS, 8 James Slattery, was also the chief executive officer of Millennium, 9 the defendant in the Underlying Action in Florida. (See Mot. 10 Compel Attach. #1 Mem. P. & A. 3 n.3, ECF No. 1.) Furthermore, 11 "MLCS and Millennium share the same address, same suite number, and 12 the same agent . . . ." 13 of interests that may explain a grudging production of subpoenaed 14 items in response to this Court's Discovery Order. 15 Here, MLCS's compliance with (Id.) This conclusion is Additional factors suggest a unity (See id.) Yet, to be clear, the Court expects MLCS's full compliance 16 with the Court's orders. 17 compel, and both have been granted. 18 taken the position that it need not produce documents, and it has 19 twice been wrong. 20 resources expended to date, and mindful of the schedule set in the 21 Underlying Action, further motion practice is highly discouraged. The third party has twice In light of the attorney's fees and judicial IV. 22 23 Plaintiff has filed two motions to CONCLUSION For the reasons described above, Plaintiff's Motion to Compel 24 and Enforce February 19, 2013 Discovery Order [ECF No. 31] is 25 GRANTED. 26 before November 11, 2013. 27 No. 35] is GRANTED. 28 Delivery to the Clerk, in Support of its Opposition to Ameritox's Supplemental documents are to be produced by MLCS on or MLCS's Request for Judicial Notice [ECF MLCS's Motion to File Documents Under Seal by 23 12cv2797 W (RBB) 1 Motion to Compel and Enforce [ECF No. 36] is DENIED. 2 Motion for Leave to File Under Seal Portions of Its Reply [ECF No. 3 38] is GRANTED. 4 Surreply in Opposition to Plaintiff Ameritox, Ltd.'s Motion to 5 Compel and Enforce February 19, 2013 Discovery Order [ECF No. 41] 6 is DENIED. 7 Ameritox's MLCS's Ex Parte Application for Leave to File IT IS SO ORDERED. 8 9 Dated: October 25, 2013 RUBEN B. BROOKS United States Magistrate Judge 10 11 cc: Judge Whelan All Parties of Record 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I:\Chambers Brooks\CASES\AMERITOX2797\OrderonMotCompel-Marcia'sEdits.wpd 24 12cv2797 W (RBB)

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